This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (CrPC for short) takes exception to the Judgment and order dated 15.03.2019 passed by the learned Special Judge, Morigaon, in connection with Special Sessions (POCSO) Case No. 11/2015 under Sections 376(2) (i) of the Indian Penal Code, 1860 (IPC for short) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act for short). The appellant was convicted under Section 376 (2) (i) of the IPC, read with Section 4 of the POCSO Act and sentenced to undergo rigorous imprisonment for 10 (Ten) years and to pay a fine of Rs.2,000/- (Rupees Two Thousand) with default stipulation.

Brief Facts:

2. The genesis of the case was that an FIR dated 04.09.2013 was lodged with the police at Laharighat Police Station (PS for short) by the informant-say ‘Y’ alleging inter alia that Babul Hussain (hereinafter, also referred to as the appellant), a pan shop owner committed sexual assault on the 10 year old daughter of the informant, who will hereinafter be referred to as the victim or ‘X’.

3. A Laharighat PS Case No. 209/2013 was registered under Section 376 IPC read with Section 6 of the POCSO Act and the Investigating Officer (IO in short) embarked upon the investigation. He recorded the statements of the witnesses and forwarded the victim for recording her statement under Section 164 CrPC and also for medical examination. On finding a prima facie case against the appellant, charge sheet was laid against him under Section 376 IPC.

4. At the commencement of trial, a formal charge was framed under Section 376 IPC by the Assistant Sessions Judge. Witnesses were examined but the Assistant Sessions Judge learnt that the victim was below 18 years of age and this case had to be tried under the POCSO Act and vide order dated 01.04.2015, the case was forwarded to the learned Special Judge (POCSO), for trial. The learned Special Judge then altered the charge and framed charge under Section 376 (2) (i) IPC, read with Section 4 of the POCSO Act and the appellant abjured his guilt and claimed innocence. The prime witnesses were re-examined after alteration of charges and they were again cross-examined thereafter. Although the prosecution and the defence did not re-examine several witnesses who were already examined by the learned Assistant Sessions Judge, PW-1 and PW-2 were re-examined after alteration of charges.

5. To substantiate its stance, the prosecution adduced the evidence of 13 (Thirteen) witnesses and the defence cross examined the witnesses to refute the charges. The defence did not cross examine PW.7, PW.8 and PW.10 (MO). On the incriminating evidence projected by the prosecution, the statement of the appellant was recorded under Section 313 CrPC and the accused/appellant, in a mechanical manner denied the incriminating allegations projected by the prosecution witnesses. His answers under Section 313 CrPC were evasive in nature. To all the incriminating circumstances, the appellant answered as follows:

“I am innocent.”

“It is false.”

“I am not involved with the incident.”

“I have no knowledge about the findings of the doctor.”

6. The appellant also did not tender any evidence in defence.

Findings of the learned trial Court:

7. After addition of charges under the POCSO Act, the prime witnesses were allowed to be cross examined again whilst the other witnesses were not re-cross-examined. It was held by the learned trial Court that this did not cause a dent in the evidence. The learned trial Court has held that the evidence of the prosecutrix has stood firm even after the rigorous cross examination by the defence, and her evidence in the Court is consistent to her statement under Section 164 CrPC. The IO, PW.13’s evidence reveals that a chequered, white undergarment was seized from the victim which was forwarded for forensic examination and the forensic report marked as Exhibit-6 has proved the presence of human semen and blood in the undergarment. It w